STATE v. ODOMNo. 2012 KA 1163.
STATE OF LOUISIANA,
Court of Appeals of Louisiana, First Circuit.
Judgment Rendered: March 22, 2013.
Ricky L. Babin, District Attorney, Donaldsonville, LA, Donald D. Candell, Assistant District Attorney, Gonzales, LA. Counsel for Plaintiff/Appellee. State of Louisiana. Lieu T. Vo Clark, Louisiana Appellate Project, Mandeville, LA, Counsel for Defendant/Appellant, Corey Odom.
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
NOT DESIGNATED FOR PUBLICATION
The defendant, Corey G. Odom, was charged by bill of information with one count of possession of 400 grams or more of cocaine, a violation of La. R.S. 40:967(F)(1)(c), and pled not guilty. Following a jury trial, he was found guilty as charged. He was sentenced to fifteen years at hard labor. He now appeals, contending the trial court erred in excluding evidence of the "co-defendant's" inculpatory statement which exonerated the defendant.
On January 29, 2010, at approximately 10:51 p.m., Gonzales City Police Department Corporal Dwayne Carpenter and Officer Aaron Picou noticed a vehicle occupied by two black males, travelling at 42 miles per hour in a 25 mile per hour speed zone, with its high beams on, northbound on Louisiana Highway 44 near the East Ascension High School football field in Gonzales. Sergeant Carpenter activated his police lights and siren, and the suspect vehicle slowed down and appeared to be pulling into a parking lot. However, the vehicle then quickly accelerated southbound down Louisiana Highway 44 at 80 miles per hour. Sergeant Carpenter and Officer Picou chased the vehicle. The suspect vehicle eventually pulled into a private residence, and the defendant jumped out of the passenger side of the vehicle and fell into a puddle of mud. He then attempted to flee from the scene on foot. He was apprehended approximately one to one and one-half minutes later, after throwing a white bag over a fence. The bag contained a Ziploc bag with 1 lb, 2.2 oz. of cocaine. The defendant had $51 on his person.
Sergeant Carpenter stayed with the driver of the vehicle, Jamar Howard. Howard claimed he had not seen the police lights or heard the police siren. Thereafter, he stated he did not know the defendant, and had seen him walking and had given him a ride. Howard had $3,558 in his front pocket.
The defendant testified at trial. He conceded he had previously pled guilty to possession of cocaine. He denied being a cocaine dealer. He stated he was related to Howard. The defendant claimed he ran from the police during the incident because he was scared and because Howard threw the bag of cocaine in his lap and told him, "If you don't get out here, I'm going to kill you, you better get out here with that."
STATEMENTS OF JAMAR HOWARD
In his sole assignment of error, the defendant argues the trial court erroneously excluded the alleged out-of-court statements of Jamar Howard, which were corroborated by testimony and evidence at trial.
Louisiana Code of Evidence article 804, in pertinent part, provides:
Prior to the presentation of the defendant's case at trial, the defense indicated it wanted to present testimony from Nioka McKinney, the defendant's mother, that she spoke to Jamar Howard after the defendant was arrested, and Howard told her, "It's my fault. It was my stuff I threw the stuff at [the defendant] and told him get out of the car." The trial court asked the defense if it could corroborate the alleged statement. The defense replied:
The trial court ruled that Nioka McKinney's statement would be insufficient to allow admission of the alleged statement of Howard, noting, "If every mother would testify and we'd have every mother on the [E]arth coming in and saying, no, somebody else did it[.]" Thereafter, the defense proffered the testimony of Nioka McKinney, to-wit:
The trial court correctly excluded the proffered testimony. Jamar Howard's alleged statement against interest, as related by Nioka McKinney, was unsupported by corroborating circumstances clearly indicating the trustworthiness of the statement. Nioka McKinney was the defendant's mother, and thus, was motivated to be less than truthful in order to prevent his conviction.
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to La. C. Cr. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C. Cr. P. art. 920(2).
The trial court failed to impose the mandatory fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars.
I agree with that portion of the majority opinion that affirms the conviction and the exclusion of the proffered testimony of Nioka McKinney. However, for the reasons assigned in dissent in State v. Hollingsworth, 12-1035 (La. App. 1 Cir. 2/15/13) (unpublished), I respectfully dissent from that portion of the majority opinion that declines to correct the sentencing error by remanding the matter to the trial court for re-sentencing.
The need for remand is further supported by the recent enactment of Louisiana Code of Criminal Procedure article 890.1, which provides in pertinent part:
Section 890.1A(1) and A(2) permit only two exceptions to this mandate: a plea agreement and a post-conviction agreement, although those exceptions are not applicable to a crime of violence or a sex offense under Section 890.1D. Neither of the exceptions applies in the present case.
By enacting Article 890.1, the Louisiana Legislature expressly declared that the courts "shall impose the sentence" provided in the penalty provision of the applicable criminal statute. This mandatory language does not permit this court to allow an illegally lenient sentence to stand.
Louisiana Revised Statute 40:967F(1)(c) provides for a fine of not less than two hundred and fifty thousand dollars and not more than six hundred thousand dollars. Because the amount of the fine lies in the trial court's discretion, the amendment of the sentence entails more than a ministerial correction of a sentencing error. Under these circumstances, this court cannot sua sponte correct the sentence and should remand the case to the trial court for re-sentencing. State v. Haynes, 04-1893 (La. 12/10/04),
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